Play it again: Abandonware

Abandonware post updated in 2023 to repair links etc after Play It Again moved to a new domain name. Originally posted with permission.

On the Popular Memory Archive this week guest Thomas Huthwaite discusses the concept of “abandonware” . Abandonware consists of titles that are out of print or no longer commercially available.  Titles that are effectively abandoned, even when the author or publisher is known. Should the legal system recognize these titles and, if not, what copyright implications may this present to the archivist and collector?

Thomas Huthwaite

Many copyright works – especially books – have a potentially lengthy commercial lifespan. Longevity does not necessarily equate to commercial success. But the longer a work’s ‘shelf life’, the better the prospects for the owner.  Strangely enough, a longer shelf life may also benefit the consumer. How else can we legally obtain copyright works if they are no longer sold?

Videogames are different to books in that their shelf life is typically very short. Even modern videogames are released, relegated to sales bins within a year or two, and barely available at retail stores after a decade.

Try purchasing a PC game from the so-called “Golden Age” of videogames, the 1980s. Even world-famous titles like Tetris (1984) or Prince of Persia (1989) are nearly impossible to find in their original form!  (‘Remakes’ of original games is a topic worthy of its own discussion.)

Losing history

What this means is that, unlike books that are reprinted in new typographical editions for decades, older videogames are at risk of being completely lost (if not forgotten) without the likes of the Play It Again Project.

No one has ever struggled to purchase a copy of The Great Gatsby (1925). But try finding the 1980s video games listed on this website.

Early videogame advocates even coined a term for titles that are ‘out of print’ or no longer commercially available: Abandonware. The term sometimes overlaps with orphan works (those whose author cannot be located) but it’s also potentially broader. For example, we know who produced Tron (1982), but it’s not commercially available.

Lost code

Many titles therefore remain abandoned even when the author or publisher is known. Another example is major producer Sega, who admitted that many favorite arcade games are not currently sold. These games cannot be re-coded for current systems because the original source code cannot be found.

Abandonware Ring

In February 1997, Peter Ringering formed the original “Abandonware Ring”. This was a collection of websites celebrating, archiving, and sharing Abandonware.

Eight months later, the Interactive Digital Software Association sent cease and desist letters to all websites within the Ring. As a result, most websites were gutted of their content or shut down entirely.  \

But an idea was born. Many more Abandonware sites were established and exist to this day.

In New Zealand (and most countries), copying or sharing Abandonware without the copyright owner’s consent likely constitutes copyright infringement just as copying of orphan works does. From a copyright owner’s perspective there are clear arguments against a system that specifically recognizes Abandonware, such as the potential for denying legitimate sales, including in the form of re-released titles or official emulation for those titles.  This is especially true where the old Abandonware version meets gamer’s needs, and will detract from any modern remake or re-release.

Not commercially available

However, the practical reality is that many Abandonware titles will never be made commercially available again.  While they attract some nostalgic or historic value, they are unlikely to ever be re-released. And are even more unlikely to gain commercial success. Particularly with modern gamers seeking new graphics, new mechanics, and, well, new games.

Many games developers recognize this, and some (including the famous Tim Schaffer, co-designer of The Secret of Monkey Island (1990)) have even expressly sanctioned the concept of Abandonware.

Should our legal system recognise the concept of abandoned works (in addition to orphan works)? After all, the concept of “abandoning” intellectual property rights is not foreign to us. Patent and trade mark systems both require “working” or “use” of the registered patent or trade mark within a certain time period, or else risk being lost.

Similarly, copyrights can be expressly abandoned or relinquished by the owner but they do not actively require continued “working” or “use”.

Whether we adopt a standard of commercial abandonment or reasonable attempts to contact the copyright owner, some kind of change seems necessary.  Without that change, a whole generation of relatively recent creations will likely perish or truly evaporate in the digital ether.

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DMZ celebrated the Play It Again launch in 2013.

Related:

Play it again: PC Games Challenge Chamber Launch of the Play it Again Popular Memory Archive Play it again explores Help columns in the 1980s